Testing the government’s word

Posted Thu, June 10th, 2010 7:37 pm by Lyle Denniston

Silently ignoring the view that federal judges have lost their authority to review U.S. government decisions on transfers of detainees from Guantanamo Bay, U.S. District Judge Gladys Kessler on Thursday summoned a top U.S. official to take the stand and answer questions about transfer policy at a secret hearing June 21. Daniel Fried, who has the title of “Special Envoy for the Closure of the Guanantamo Bay Detention Facility,” must appear, the judge said, to back up official assurances that no detainee will be sent to a country where there is a real risk of torture or other inhumane treatment.

This was a highly unusual order, especially in the wake of two very explicit rulings by the D.C. Circuit Court that it is up to the political branches alone — that is, the White House and Congress — to manage transfers of any detainees from the U.S. prison facility on the island of Cuba. Kessler, however, indicated that she had no choice but to test the government’s word about its safeguards before any captive is sent to a country over his objection.

Special Envoy Fried has made repeated statements — kept secret by the courts — to back up government filings in Guantanamo cases, to show that the Obama Administration has a firm policy that it will not send any detainee to a country where torture or abuse is “more likely than not.” Fried has been centrally involved in the process of persuading other nations to accept Guantanamo prisoners.

Statements like that, including one filed before Judge Kessler, must be tested, the judge said in her three-page order. “There is no better mechanism than interrogation by competent counsel” to “ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.”

Kessler has before her the case of an Algerian national, Farhi Saeed Bin Mohammed, who has been cleared by the judge for release and is now attempting to block his transfer to his home country. The judge said that Bin MOhammed has not lived in Algeria for 20 years, and has made “allegations of great concern” about his fears of mistreatment or even execution by the Algerian government or by armed Algerian terrorists who retaliate violently when individuals refuse to join their ranks.

Bin Mohammed, the judge wrote, “has made clear that he wou.d rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.”

The U.S. government, responding to the detainee’s plea for an order to block his transfer to Algeria, filed three declarations with Kessler. The judge reacted negatively to these statements, suggesting that two of them “appear to be boilerplate staements which have been filed in a number” of detainee cases. Those two, she added, also “are relatively old” — filed in July and November of last year. The latest of the three, by Fried, and was filed “much more recently,” the judge noted. But it is a secret filing, and Bin Mohammed’s lawyers have not seen it. (The November filing also appears to be by Fried.)

“It is essential,” Kessler wrote, “that the representations of the United States Government that it has received assurances from the Algerian Government that any Guantanamo Bay prisoner who is transferred to that country will receive ‘humane treatment and treatment in accordinance with the international obligations of the foreign government accepting transfer’ be tested.”

Thus, “in order to resolve any doubts about the issue,” the judge said Fried “must be made available to respond to questions from all counsel, as well as the Court, regarding the facts and judgments referred to in his declarations.” Because the exchanges might involve classified information, the judge said, the hearing will be closed to the public, with a redacted transcript to come out “within 24 hours.” The judge set the hearing for 10 a.m. on June 21. She specified that Fried was to appear and testify about his declarations. Presumably, he will have to do so under oath, though the judge did not say so explicitly.

Because the hearing is not scheduled for another 11 days, the Justice Department has time, if it wishes, to try to challenge Kessler’s order in the D.C. Circuit under that Court’s rulings that federal judges in Guantanamo cases are not to “second-guess” official transfer actions.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.